"The subject property includes approximately 61 undeveloped acres,
and has been cultivated for grass seed in the recent past. The property is
located outside [the] city limits, with its eastern boundary abutting [the] city
limits. The property is located within the city's urban growth boundary
(UGB), which is coterminous with the parcel's southern boundary. The
property is designated Mixed Density Residential on the Lebanon
Comprehensive Plan (LCP) map. The subject property is zoned Urban
Growth Area, Urban Growth Management with a 10-acre minimum parcel
size * * * by Linn County. The challenged decision annexes the property to
the city and applies the city's [Residential Mixed Density] zoning
designation to the property.

"The property is bounded on the east by South Fifth Street, a
designated collector street improved to county standards. Oak Creek
traverses the northeastern portion of the property and renders approximately
10 acres unsuitable for residential development. Surrounding land uses
include: agricultural fields to the east, west, and northwest; rural residences
to the north, northeast, and southwest; and a private school campus to the
south. None of the properties that abut the property on the north, west or
south are within [the] city limits. The private school is located outside the
UGB, in unincorporated Linn County.

"A 16-inch water main is located along South Fifth Street. A 10-inch sewer line is located to the north of the subject property, and would
need to be extended to the property, if development occurs prior to the
construction of a planned interceptor sewer line. A development proposal
was not submitted in conjunction with the annexation request, however, it is
anticipated that the property will be developed for residential use."

Id. at 181.

The trust's first assignment of error concerns whether Just (the petitioner
before LUBA, the respondent on the petition for judicial review, and the cross-petitioner
on the cross-petition for judicial review) had standing before LUBA and has standing in
this court under Utsey v. Coos County, 176 Or App 524, 32 P3d 933 (2001), rev
dismissed, 335 Or 217 (2003). In Utsey, we held that "the person invoking the
jurisdiction of the courts must establish that a decision would have a practical effect on
him or her." Id. at 543 (emphasis omitted).

The trust asserts that, because Just failed to demonstrate a practical effect
on his rights, he lacks standing as a respondent before this court. Specifically, the trust
asserts that, "[w]here an opponent to a land use application recites that his only interest in
objecting to the application is to make sure the city properly applies its laws, that person
does not have a justiciable claim to seek redress of in the appellate process."

The trust also asserts that LUBA erred by refusing to dismiss Just's appeal
because, under the standard articulated in Utsey, Just had not demonstrated that a
justiciable controversy existed before LUBA. The trust asserts that the constitutional
justiciability requirements that we articulated in Utsey apply to proceedings before LUBA
for two alternative reasons. First, even though LUBA is an executive branch agency, it
"performs judicial review functions and exercises adjudicatory powers just as any court
does." Second, ORS 197.805 provides, in part, that LUBA's "decisions be made
consistently with sound principles governing judicial review."

Finally, the trust has moved to dismiss Just's cross-petition for judicial
review in this court because Just lacks standing. The trust contends that, under Utsey,
Just must "establish the justiciability of [his] claim as a matter of constitutional law" and
that he failed to do so.

To resolve the trust's and the city's first assignment of error and the trust's
motion to dismiss, we must resolve the following three issues: (1) whether the
justiciability requirements articulated in Utsey apply to proceedings before LUBA and, if
they do, whether Just satisfied those requirements; (2) whether Just must demonstrate
standing as a respondent on review in this court; and (3) whether Just has standing as a
cross-petitioner in this court. We address each issue in turn.

We begin by determining whether the constitutional justiciability
requirements articulated in Utsey apply to proceedings before LUBA. In its order in this
case, LUBA concluded that those requirements do not apply because standing before
LUBA is determined by statute and not by whether the decision will have a practical
effect on the petitioner. LUBA concluded:

"In Utsey, the court held that an appellant seeking review by the Court of
Appeals must demonstrate that the outcome of the proceedings will have a
practical effect on that party. According to [the trust], [Just] does not live
in the City of Lebanon, the decision will not have any practical effect on
him, and we should dismiss the case for those reasons. As [the trust]
acknowledges, we have already rejected similar challenges to standing at
LUBA. See Central Klamath County CAT v. Klamath County, 41 Or
LUBA 524, 527 (2002) (standing before LUBA determined by statute
rather than practical effect). [The trust] urges us to reconsider our position
that a petitioner may have standing to appeal a local government's land use
decision to LUBA under ORS 197.830(2), even though that petitioner may
not have standing to seek judicial review of LUBA's decision by the Court
of Appeals. However, [the trust] provides no compelling reason to revisit
our prior decisions, and we decline to do so."

Just, 45 Or LUBA at 182.

LUBA's conclusion was based on its reasoning in prior decisions, including
Central Klamath County CAT, the case on which it expressly relied in its order in this
case. In Central Klamath County CAT, LUBA stated that "[t]he county appears to
concede that LUBA does not exercise judicial power in any constitutional sense and that
the limitation on the judicial power described in Utsey does not apply to LUBA directly."
41 Or LUBA at 528. Thus, LUBA addressed only the argument that "ORS 197.805
evinces legislative intent to subject LUBA's review to the same limitations the Oregon
Constitution imposes on the judicial power." Id. at 529.In rejecting that argument,
LUBA reasoned, in part:

"LUBA has invoked ORS 197.805 as statutory authority to apply a number
of different principles of judicial review. The most pertinent example
involves the principle that LUBA will dismiss an appeal where the
underlying matter has become moot. The Board has applied that principle
from its earliest cases. Our understanding of the mootness doctrine was
based on appellate case law and, like those cases, formulated the principle
as requiring dismissal where a decision on the merits would have no
practical effect. We subsequently identified ORS 197.805 as authorizing
application of that principle in our review.

"As the majority opinion in Utsey explained, the mootness doctrine
can be viewed as a temporal aspect of the fundamental principle of
justiciability, that at all times the court's decision must have a practical
effect on the rights of the parties. In the present case, we understand the
county to argue that, just as ORS 197.805 requires LUBA to apply the
mootness doctrine in its review, it also requires LUBA to apply the
fundamental principle underlying that doctrine--that petitioners satisfy the
practical effect standard--as a condition to invoking LUBA's review.

"It may not be the case, as the county presumes, that ORS 197.805
requires LUBA to apply in a rote fashion each and every potentially
applicable principle of judicial review, or every aspect of such principles,
without regard to whether that principle is compatible with LUBA's review
functions and with statutory polices governing participation in and review
of land use decisions. In other words, it may be consistent with ORS
197.805 to apply existing sound principles of judicial review in a modified
form to fit the particular context of LUBA's review, and even to ignore such
principles, where they are incompatible with competing principles or
statutory policies.

"Be that as it may, we do not understand the county to question that,
even if ORS 197.805 broadly mandates that LUBA apply each and every
sound principle of judicial review, potentially including the practical effect
standard discussed in Utsey, the legislature may and indeed has adopted
specific statutes that require LUBA to conduct its review in a manner that
may differ from that conducted under 'sound principles of judicial review.'
For example, ORS 197.835(11)(a) requires that, where possible, LUBA
'shall decide all issues presented to it when reversing or remanding' a land
use or limited land use decision. That statutory mandate is arguably
contrary to a principle of judicial review that the Court of Appeals often
applies in its review of LUBA, and other, decisions. For the reasons that
follow, we conclude that, even assuming ORS 197.805 can be read in
isolation to require that LUBA apply the practical effect standard discussed
in Utsey, when read in context it is clear that the legislature has chosen
otherwise.

"As noted ORS 197.830(2) provides in relevant part that a person
may petition LUBA for review of a land use or limited land use decision
where the person files a notice of intent to appeal and appears before the
local government. ORS 197.830(2) contains no other requirements that
relate to the standing of petitioners, which suggests that the legislature
intended that no other such requirements apply. That suggestion is not a
particularly strong one, and it does not in itself conclusively dispel the
county's contrary view that ORS 197.805 may import principles of judicial
review that add to the requirements expressly imposed by ORS 197.830(2).
Nonetheless, the county's view requires reading into the terms of a statute a
requirement that is present in the statutory scheme, if at all, only as an
implication drawn from a general policy statement. In interpreting a statute,
our task is not to 'insert what has been omitted, or to omit what has been
inserted.' ORS 174.010. The county's proffered interpretation of ORS
197.805 and 197.830(2) is far closer to inserting 'what has been omitted'
than the contrary view of the statutes is to omitting 'what has been
inserted.'"

Central Klamath County CAT, 41 Or LUBA at 530-33 (emphasis in original; citations
and footnotes omitted). LUBA concluded that, because the petitioner Central Klamath
County CAT satisfied the standing requirements in ORS 197.830, it had standing before
LUBA. Id. at 535. With that understanding of LUBA's position, we turn to the trust's
arguments.

LUBA is an administrative agency that was granted its existence and
authority to act by the legislature. See ORS 197.810; Valley & Siletz Railroad v.
Laudahl, 296 Or 779, 786, 681 P2d 109 (1984); see alsoOchoco Const. v. DLCD, 295 Or
422, 426, 667 P2d 499 (1983) (describing the nature of an administrative agency and the
source of its authority). The Supreme Court has indicated that, even though LUBA
performs adjudicatory functions, it is not a court in which the constitution has vested
judicial power:

"LUBA is directed by statute to 'conduct review proceedings upon
petitions filed in the manner prescribed.' ORS 197.820(1) (former Or Laws
1979, ch 722, § 2(a)(1)). The agency is empowered to conduct review of
land use decisions through quasi-judicial proceedings. LUBA is a tribunal
created by the state to ensure that local governments do not misapply the
state land use statutes and related goals and rules. That this function is
carried out through case-by-case decisionmaking in a quasi-judicial setting
does not violate the doctrine of separation of powers as expressed by
Article VII (Amended), section 1, or Article III, section 1, of the Oregon
Constitution.

In Utsey, we explained that the state constitution is the source of justiciability
principles and that those principles circumscribe the judicial power that the constitution
confers on courts. Specifically, we noted that

"the Oregon Constitution does not expressly mention justiciability, much
less standing. It does, however, confer on the courts the 'judicial power.'
The question is what the framers likely intended that to mean. In light of
the case law that existed up to the adoption of the original Article VII in
1857--and even the amended version in 1910--it is likely that the framers
would have understood the judicial power to conform to the limited, private
rights model of adjudication that is reflected in early federal cases[.]"

Id. at 548 (emphasis in original omitted; emphasis added). For those reasons, we
conclude that, because LUBA is not a court in which the constitution vests judicial
power, the justiciability principles described in Utsey that circumscribe the exercise of
judicial power do not apply to LUBA.

"LUBA [cannot] have it both ways. If there is not a justiciability
requirement in ORS 197.805, neither can there be a mootness requirement.
When LUBA concludes it may pick and chose between mootness and
justiciability it has committed error, because mootness and justiciability are
not two different standards, rather there is but one standard of justiciability
and a requirement that this standard be present at all times during the
pendency of the case[.]"

The issue of whether LUBA must apply the practical effects requirement
articulated in Utsey because it has chosen to apply some aspects of the "mootness"
doctrine requires us to interpret the statute that LUBA relied on as the source of authority
for its use of the mootness doctrine, ORS 197.805. PGE v. Bureau of Labor and
Industries, 317 Or 606, 859 P2d 1143 (1993). We begin and end our inquiry with the text
of the statute and its context, which includes related statutes. See PGE, 317 Or at 610-11.

ORS 197.805 provides:

"It is the policy of the Legislative Assembly that time is of the
essence in reaching final decisions in matters involving land use and that
those decisions be made consistently with sound principles governing
judicial review. It is the intent of the Legislative Assembly in enacting
ORS 197.805 to 197.855 to accomplish these objectives."

(Emphasis added.) The text of ORS 197.805 requires that LUBA make decisions
"consistently with sound principles governing judicial review." The term "consistently"
means "in harmony with <~ with our intentions>." Webster's Third New Int'l Dictionary
484 (unabridged ed 1993); see also Bryan A. Garner, A Dictionary of Modern Legal
Usage 207 (2d ed 1995) ("For adverbial uses, consistently with (= in a manner consistent
with) is the correct phrase." (Emphasis in original.)). Accordingly, the statute does not
require LUBA to apply all of the judicial review principles in exactly the same way that a
court would apply them. As we will discuss, the legislature's use of the words
"consistently with" indicates that LUBA may modify sound principles of judicial review
or choose not to apply certain principles to ensure that its decision is compatible with the
specific statutes and principles governing LUBA's review.

The context of ORS 197.805 supports that conclusion. In particular, ORS
197.830, the statute concerning a person's standing to appeal to LUBA, provides:

"(2) Except as provided in ORS 197.620(1) and (2), a person may
petition the board for review of a land use decision or limited land use
decision if the person:

"(a) Filed a notice of intent to appeal the decision as provided in
subsection (1) of this section; and

"(b) Appeared before the local government, special district or state
agency orally or in writing.

"(3) If a local government makes a land use decision without
providing a hearing, except as provided under ORS 215.416(11) or
227.175(10), or the local government makes a land use decision that is
different from the proposal described in the notice of hearing to such a
degree that the notice of the proposed action did not reasonably describe the
local government's final actions, a person adversely affected by the decision
may appeal the decision to the board under this section:

"(a) Within 21 days of actual notice where notice is required; or

"(b) Within 21 days of the date a person knew or should have known
of the decision where no notice is required.

"(4) If a local government makes a land use decision without a
hearing pursuant to ORS 215.416(11) or 227.175(10):

"(a) A person who was not provided mailed notice of the decision as
required under ORS 215.416(11)(c) or 227.175(10)(c) may appeal the
decision to the board under this section within 21 days of receiving actual
notice of the decision.

"(b) A person who is not entitled to notice under ORS
215.416(11)(c) or 227.175(10)(c) but who is adversely affected or
aggrieved by the decision may appeal the decision to the board under this
section within 21 days after the expiration of the period for filing a local
appeal of the decision established by the local government under ORS
215.416(11)(a) or 227.175(10)(a).

"(c) A person who receives mailed notice of a decision made without
a hearing under ORS 215.416(11) or 227.175(10) may appeal the decision
to the board under this section within 21 days of receiving actual notice of
the nature of the decision, if the mailed notice of the decision did not
reasonably describe the nature of the decision.

"(d) Except as provided in paragraph (c) of this subsection, a person
who receives mailed notice of a decision made without a hearing under
ORS 215.416(11) or 227.175(10) may not appeal the decision to the board
under this section.

"(5) If a local government makes a limited land use decision which
is different from the proposal described in the notice to such a degree that
the notice of the proposed action did not reasonably describe the local
government's final actions, a person adversely affected by the decision may
appeal the decision to the board under this section:

"(a) Within 21 days of actual notice where notice is required; or

"(b) Within 21 days of the date a person knew or should have known
of the decision where no notice is required."

For all of those reasons, we conclude that the text and context of ORS
197.805 do not require LUBA to apply the justiciability doctrine in the manner that this
court applied it in Utsey. Because Just appeared before the local government and filed a
notice of intent to appeal, he had standing to appeal to LUBA under ORS 197.830(2).
Accordingly, LUBA did not err in refusing to dismiss Just's appeal on the ground that he
lacked standing under Utsey.

We now turn to the issue of whether Just must demonstrate standing as a
respondent on review in this court. In Utsey, we expressly addressed that issue as
follows:

"That leaves the question of to whom the practical effects
requirement applies. On that question, the courts have been more
categorical: To have standing, the person invoking the jurisdiction of the
courts must establish that a decision would have a practical effect on him or
her. * * * It is not sufficient that the person against whom a proceeding is
initiated might be affected by a judicial decision."

176 Or App at 543 (emphasis in original). Based on our reasoning in Utsey, we conclude
that Just, as the respondent on review, need not establish that a decision would have a
practical effect on him. Only the person or persons invoking the jurisdiction of the court
must establish that a decision would have a practical effect on him or her.

Finally, we turn to the trust's motion to dismiss the cross-petition. As
explained above, the trust moved to dismiss Just's cross-petition, arguing that, under
Utsey, Just must "establish the justiciability of [his] claim as a matter of constitutional
law." According to the trust,

Based on Just's assertion that he "rests on his statutory standing," we agree
that, under our holding in Utsey, Just lacks standing to pursue his cross-petition because
he has not demonstrated that a decision will have a practical effect on his interests.
Although Just, amicus curiae, and intervenor argue that Utsey was wrongly decided, we
decline the invitation to revisit our holding in that case. That is an issue for Supreme
Court review. Thus, we grant the trust's motion to dismiss Just's cross-petition and turn to
the remaining assignments of error.

"The proposed annexation complies with City Annexation Policy, Section
5, in that a public need exists regarding a variety of issues. Based on
current and projected rates of population growth, the City has a need to
incorporate more residential land to accommodate such projected growth.
If the land is not incorporated to provide areas of higher densities of
residential development, then the rural areas will be under increased
pressure to urbanize thus threatening to create sprawl conditions and
encroachment on farmland. The City's 1997 Residential Lands Study states
that the City will need at least 390 acres of land to support residential
development to the year 2017. Only 109 acres of land have been annexed
into the City since 1997, and several of these properties were already
developed. Thus, there is a need for at least 281 more acres of land to be
annexed into the City in order to meet residential housing requirements by
2017.

"* * * The area within the UGB has already been determined to be
necessary for urbanization. The Comprehensive Plan specifically states at
pg. 4-7 that the UGB contains urbanizable lands which are

"'1. Determined to be necessary and suitable for future urban uses;

"'* * * * *

"'3. Are needed for the expansion of the urban area.

"* * * There is no requirement in the Comprehensive Plan or Zoning
Ordinance that says land within city limits available to meet the public need
must be identified and inventoried."

(Boldface in original; citations omitted.)

LUBA reasoned, however, that those findings were inadequate:

"A copy of the city's 1997 BLI is not in the record. An excerpt of
the 1997 BLI is attached to [the trust's] brief. However, we cannot tell from
that excerpt whether the BLI concludes that 390 acres must be annexed to
the city to meet the city's 20-year housing needs or whether the 1997 BLI
simply concludes that only 390 of the 1,331 acres of residentially
designated land that is already included within the UGB will be needed
within the 20-year planning period, without identifying how many of those
needed 390 acres are already within the city and are already planned and
zoned for residential use. Therefore, the city's findings that the proposed
annexation is needed and is consistent with Annexation Policy 5 and LCP
Urbanization Element, Annexation Policy 1 are not adequate and are not
supported by substantial evidence."

Just, 45 Or LUBA at 190-91. We agree with LUBA's analysis and affirm without further
discussion.

In its third assignment of error, the trust asserts that LUBA erred by
concluding that a specific development proposal is required before it may annex property.
For the reasons stated in Just v. City of Lebanon(A122516), ___ Or App ___, ___ P3d
___ (Apr 21, 2004), we affirm the trust's third assignment of error without further
discussion.

In its fourth through sixth assignments of error, the trust asserts that LUBA
erred by concluding that (1) the city's failure to require a specific development proposal
undermines the city's findings concerning the adequacy of city services; (2) the city's
determination that the annexation maintains a compact urban growth pattern was
undermined by its inadequate public needs findings; and (3) the city's rezoning decision
should be remanded "based solely and exclusively on its decision to remand the
annexation decision." We affirm those assignments of error without further discussion.

2.
The trust was the applicant before the city and an intervenor before LUBA. As a
party to the proceeding before LUBA, the trust has statutory standing under ORS 197.850. See
ORS 197.850(1) (providing that "[a]ny party to a proceeding before the Land Use Board of
Appeals under ORS 197.830 to 197.845 may seek judicial review of a final order issued in those
proceedings"); see also OAR 661-010-0010(11) (providing that, generally, a party to an appeal to
LUBA means "the petitioner, the governing body, and any person who intervenes as provided in
OAR 661-010-0050"). The trust also has constitutional standing to seek judicial review in this
court. See Utsey v. Coos County

, 176 Or App 524, 32 P3d 933 (2001), rev dismissed, 335 Or
217 (2003) (describing constitutional standing principles). The city also petitions for judicial
review; however, we note that the city did not appear before LUBA. Because the trust has
standing in this court and the trust and city make similar arguments in this review proceeding, it
is immaterial whether the city independently has standing, and we do not consider that issue. SeedeParrie v. Stateof Oregon, 133 Or App 613, 617, 893 P2d 541, rev den, 321 Or 560 (1995)
(reasoning that, "[b]ecause [two of the plaintiffs] have standing, and the substantive and
litigative positions of the other plaintiffs in the same action are exactly the same as theirs, it is
immaterial whether the other plaintiffs independently have standing"); see alsoThunderbird
Motel v. City of Portland, 40 Or App 697, 704, 596 P2d 994, rev den, 287 Or 409 (1979)
(reasoning that, "[b]ecause one or more of the plaintiffs have standing to raise all of the matters
which are presented by their appeal, we turn to the merits"). For purposes of the discussion in
this opinion, we take our description of the arguments from the trust.

3.
In Utsey, we concluded that the party that invokes the jurisdiction of the court has
the "obligation to establish the justiciability of its claim," 176 Or App at 549; in order to
establish the justiciability of its claim, the party "must demonstrate that a decision in this case
will have a practical effect on its rights," id. at 550; and that "[t]he case law concerning the
'practical effects' requirement clearly states that an abstract interest in the proper application of
the law is not sufficient," id.

4. See also Baxter v. Monmouth City Council, 51 Or App 853, 856, 627 P2d 500,
rev den, 291 Or 368 (1981) (in rejecting the petitioner's constitutional challenge to the delegation
of solely adjudicatory functions to LUBA, we stated that "[d]elegation of adjudicatory powers to
administrative agencies has been upheld in this state where judicial review is provided at some
stage of the proceeding" and that separation of powers problems do not exist because "[t]he
adjudicatory functions carried out by LUBA are ancillary to an administrative objective: the
regulation of land use in this state").

"Under the constitution, the legislature is at liberty to make any
individual or entity that it desires a party to an executive
proceeding, including a party who represents only the public
interest, rather than a personal interest. Consequently, there is
nothing unconstitutional, insofar as Article III, section 1, [the
section that divides the powers of government into three
departments,] is concerned, about the provisions of ORS 197.830
that permit any person or organization who has appeared before the
local government, special district or state agency to appear as a
party before the Land Use Board of Appeals * * *. Where the
legislature potentially runs afoul of Article III, section 1, is in the
conferral of judicial review of LUBA's decisions on this court,
without regard for the fact that executive proceedings may lack a
justiciable controversy."

6. See, e.g., Heiller v. Josephine County, 25 Or LUBA 555, 556 (1993) (dismissing
appeal as moot because the challenged land use decision had been rescinded by the county and
the county's decision rescinding its earlier decision had not been appealed); Barr v. Clackamas
County, 22 Or LUBA 504 (1991) (dismissing appeal as moot where a new law, which permitted
the challenged use of the subject property, became effective while the appeal was pending).

7.
Even though the trust did not make that argument to LUBA, we address it because
it implicates LUBA's jurisdiction and challenges to jurisdiction may be raised for the first time
on appeal. See ODOT v. City of Mosier, 161 Or App 252, 260, 984 P2d 351 (1999) (addressing
an argument that was made for the first time at oral argument because "it implicate[d] the
jurisdictional question of whether the city's decision is a final land use decision that comes
within LUBA's review authority"); Hillyer's Mid-City Ford, Inc. v. City of Woodburn, 156 Or
App 400, 403, 965 P2d 474 (1998) (reasoning that, even though neither party asserted that there
was no final appealable land use decision before LUBA over which it had jurisdiction, we would
consider that jurisdictional issue sua sponte); cf.Poddar v. Clatsop County, 167 Or App 162,
164, 2 P3d 929, adh'd to on recons, 168 Or App 556, 7 P3d 677, rev den, 331 Or 193 (2000)
("[W]e must consider the issue of justiciability sua sponte because it affects the trial court's
jurisdiction to enter the judgments.").

8.
Because this case concerns LUBA's determination that Just had standing under
ORS 197.830(2), we need not discuss the meaning or the distinctions, if any, between the
requirements of aggrievement and adverse effect as articulated in ORS 197.830(3), (4)(b), and
(5), and the practical effect requirement as articulated in Utsey.

9.
In Doty, we held that the petitioner had to demonstrate that a decision would have
a practical effect on her rights. 185 Or App at 235 n 1. We concluded that she did so by
averring that (1) she "pass[ed] by the property regularly," and (2) the development of the subject
property would adversely affect her use and enjoyment of an estuary that she used for passive
recreation, including birdwatching, and that was located in the vicinity of the subject property.
Id.